A duty to repair cannot be equated with a duty to make safe
The Defective Premises Act 1972 provides an important cause of action for personal injury claims. It was enacted to ensure that landlords who are under repairing obligations to tenants, or who have rights of entry to effect repairs, owe a duty of care to their tenant’s visitors (section 4).
Dodd (widow and executrix of Paul Dodd) v Raebarn Estates Ltd [2017] EWCA Civ 439; [2017] PLSCS 135 concerned a fatal accident on a flight of stairs. The executrix of the deceased (who slipped and banged his head while visiting the tenant) claimed that the stairs were dangerous. She drew the court’s attention to the planning permission for the staircase and argued that the premises were in “disrepair” because the handrail shown on the accompanying plans had never been provided.
The executrix relied on Hannon v Hillingdon Homes [2012] EWHC 1437 QB. In that case, the judge ruled that the landlord was responsible for failing to “repair” a bannister that had been deliberately removed by the tenant 20 years before the accident. The landlord relied on Alker v Collingwood Housing Association [2007] 1 WLR 2230; [2007] 2 EGLR 43, in which the Court of Appeal stated, in clear terms, that a duty to repair cannot be equated with a duty to make safe, and on Sternbaum v Dhesi [2016] EWCA Civ 155; [2016] PLSCS 91, which also concerned an accident on a steep flight of stairs that lacked a handrail and which, on the face of it, provided strong support for its case.
The Defective Premises Act 1972 provides an important cause of action for personal injury claims. It was enacted to ensure that landlords who are under repairing obligations to tenants, or who have rights of entry to effect repairs, owe a duty of care to their tenant’s visitors (section 4).
Dodd (widow and executrix of Paul Dodd) v Raebarn Estates Ltd [2017] EWCA Civ 439; [2017] PLSCS 135 concerned a fatal accident on a flight of stairs. The executrix of the deceased (who slipped and banged his head while visiting the tenant) claimed that the stairs were dangerous. She drew the court’s attention to the planning permission for the staircase and argued that the premises were in “disrepair” because the handrail shown on the accompanying plans had never been provided.
The executrix relied on Hannon v Hillingdon Homes [2012] EWHC 1437 QB. In that case, the judge ruled that the landlord was responsible for failing to “repair” a bannister that had been deliberately removed by the tenant 20 years before the accident. The landlord relied on Alker v Collingwood Housing Association [2007] 1 WLR 2230; [2007] 2 EGLR 43, in which the Court of Appeal stated, in clear terms, that a duty to repair cannot be equated with a duty to make safe, and on Sternbaum v Dhesi [2016] EWCA Civ 155; [2016] PLSCS 91, which also concerned an accident on a steep flight of stairs that lacked a handrail and which, on the face of it, provided strong support for its case.
The executrix tried to persuade the court to distinguish Sternbaum, but the Court of Appeal felt unable to do so. It had profound sympathy for the executrix, but dismissed her claim. Lewison LJ, who delivered the unanimous judgment of the court, explained that the reach of the duty under section 4 is no longer than the reach of the covenant to repair. And premises that are unsafe are not necessarily in disrepair.
The lack of the handrail and the steepness of the stairs installed during the renovations might have constituted breaches of covenants to comply with all planning permissions, to execute any work required by legislation and not to make alterations without the landlord’s consent. But none of these covenants concerned “repair”.
If something requires repair, it must be in a worse condition than it was at some earlier point in time. And, if part of a building is replaced by an inferior product, it is not, for that reason alone, out of repair, although in a very general sense it may be in a “worse” state than it was before.
Would it have made any difference to the outcome if the staircase installed during the renovation work had originally had a handrail, which was later removed? Would Hannon then apply? Lewison LJ’s comments appear to cast doubt on the judge’s reasoning in that case. He suggested that the test applied in Hannon appeared to be one of functionality, “which is not the correct test”. Part of a building may function inadequately, but it does not follow that it is in disrepair.
Allyson Colby is a property law consultant
